No. 1936 October Term, 1976, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 870, 871, 872 March Session, 1976.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellant.
James J. Phelan, Jr., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., dissents, based on his dissenting opinion in Commonwealth v. McNear,
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Appellee was convicted in Municipal Court of possession of an instrument of crime generally,*fn1 reckless endangerment,*fn2 and carrying a firearm on public property in Philadelphia.*fn3 An appeal was taken and a trial de novo took place in the Court of Common Pleas before a jury with the Honorable Curtis C. Carson, Jr., presiding. At the conclusion of the Commonwealth's case, demurrers to all three charges were overruled. The following day, Judge Carson, sua sponte, reconsidered his ruling and sustained the demurrers on all three counts. The Commonwealth subsequently appealed. We reverse.
On appeal from the sustaining of a demurrer to the Commonwealth's evidence, we must review the evidence in a light most favorable to the Commonwealth together with all inferences reasonably drawn therefrom. Commonwealth v. Gladden, 226 Pa. Super. 13, 311 A.2d 711, allocatur refused, 226 Pa. Super. xxix (1973).
In so viewing the evidence, the jury would have been warranted in finding the following facts from the Commonwealth's case. Early in the evening of October 2, 1975, appellee's son notified Philadelphia Housing Authority Police Officers that he had seen his father loading a gun outside the apartment of appellee's estranged wife. The son feared for his mother's safety. Two officers, Fulginiti and Neal, raced on foot to the 1000 block of Brown Place, which is located in a public housing project owned by the Philadelphia Housing Authority. A crowd of fifteen to twenty people had gathered outside 1009 Brown Place, the address
[ 251 Pa. Super. Page 330]
of the apartment where appellee's wife resided. Officer Neal saw appellee and his wife walking up the sidewalk ten or fifteen feet from the entrance to the apartment building. Appellee continued up the walk and reached the entrance, whereupon he turned around and pointed a gun at the two officers, while holding his wife directly in front of himself. Both officers testified that they heard several "clicking sounds" emanating from appellee's direction. These sounds were characterized as similar to the noise of a trigger of a gun being pulled. Appellee then pushed his wife forward out of the doorway and fled up the interior steps of the building to his wife's apartment. Officer Neal gave chase and apprehended appellee as appellee exited the front bedroom. Officer Neal confiscated a gun found lying on the bed, along with four spent cartridges and a live cartridge that had misfired. The Commonwealth also produced evidence to show that appellee did not have a license to carry a firearm and that Mrs. Goosby did not keep a firearm in her apartment.
The demurrer to the § 907(a) charge was sustained because the trial judge believed that since § 907(b) expressly deals with concealed firearms, § 907(a) did not include an openly carried firearm as an instrument of crime under that section. This issue was squarely faced by this Court in the case of Commonwealth v. McNear, 238 Pa. Super. 177, 353 A.2d 39, allocatur granted, 238 Pa. Super.Ct. xlii (1975). Although Judge Carson was aware of this decision, he chose to disregard the ruling of the majority of this Court which said that § 907(a), as well as § 907(b), does apply to the possession of firearms. We are thus constrained to reverse the order sustaining the demurrer.
The demurrer to the § 2705 charge, reckless endangerment, was sustained because the trial judge believed that appellee should have been indicted either for simple assault*fn4
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or aggravated assault.*fn5 Although there is little supportive reasoning for this ruling in the lower court's opinion, Judge Carson's statements at pages 240-252 of the record outline his position. The District Attorney indicated that appellee was indicted under § 2705 because the Commonwealth was not confident that the requisite mens rea could be made out for a charge of assault or aggravated assault. To this explanation the trial court responded that reckless and negligent conduct is also encompassed by the assault and aggravated assault sections and thus appellee should have been indicted under those sections. The problem with this reasoning is that §§ 2701 and 2702 apply to reckless conduct only if there is actual bodily injury caused by the conduct.*fn6 In order to convict of assault ...